Free Motion to Strike - District Court of Delaware - Delaware

Case 1:04-cv-01258-SLR

Document 316

Filed 04/10/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MCKESSON INFORMATION SOLUTIONS LLC, Plaintiff, v. THE TRIZETTO GROUP, INC. Defendant. TRIZETTO'S MOTION TO STRIKE MCKESSON'S SECOND PRETRIAL ORDER SUBMISSION Five days ago, the Court conducted a Pretrial Conference in this matter. Among the matters discussed and addressed at the Conference were those set forth by the parties in their Joint Pretrial Order submitted on March 31, 2006, pursuant to L.R. 16.4(c). D.I. 298. Today, McKesson filed a new Pretrial Order containing new additional issues of law, new additional issues of fact, a new exhibit list with 285 new exhibits and a new witness list with five new witnesses. D.I. 314. This submission is untimely, improper and highly prejudicial, given that trial is set to commence on Monday, April 17, 2006, a date that has been known to McKesson since the December 2004 scheduling conference. McKesson attempts to justify its untimely submission by suggesting that it was unaware that the issues regarding TriZetto's equitable defenses of laches, estoppel, and inequitable conduct would proceed to trial as scheduled on April 17. Yet this was the same position that McKesson took in its November 11, 2005 email, when it urged the Court to "schedule the court trial on the equitable issues of laches, estoppel, and inequitable conduct . . . as soon as possible following the infringement, willful infringement, and damages trial scheduled C.A. No. 04-1258-SLR

Case 1:04-cv-01258-SLR

Document 316

Filed 04/10/2006

Page 2 of 4

for April 17, 2006." In response, on November 22, 2005, the Court ordered, "Motion practice and trial on the issues of infringement, willfulness and any equitable issues shall proceed consistent with the scheduling order in this case." D.I. 145. Thus, for more than four months, McKesson has been fully aware that trial on "any equitable issues" would proceed on April 17. There is no legal basis or justification for this new submission. In fact, McKesson acknowledged in the Joint Pretrial Order that, "unless good cause is shown, the parties may only introduce documents identified on their trial exhibit list," attached to the Joint Pretrial Order. D.I. 298, p. 7, ¶ 5. McKesson's submission of a second pretrial order submission containing 285 new exhibits and identifying five new witnesses a week before trial is completely contrary to the Court's orders and the local rules governing pretrial procedure. There is no basis or justification for McKesson's new pretrial order submission, and TriZetto respectfully requests that this Court strike it from the record in this matter. MORRIS, NICHOLS, ARSHT & TUNNELL LLP /s/ Jack B. Blumenfeld Jack B. Blumenfeld (#1014) Rodger D. Smith II (#3778) 1201 N. Market Street Wilmington, DE 19899 (302) 658-9200 Attorneys for Defendant The TriZetto Group, Inc. Of Counsel: GIBSON, DUNN & CRUTCHER LLP Jeffrey T. Thomas David Segal Michael A. Sitzman Jamboree Center, 4 Park Plaza Irvine, CA 92614 April 10, 2006

2

Case 1:04-cv-01258-SLR

Document 316

Filed 04/10/2006

Page 3 of 4

RULE 7.1.1 CERTIFICATE I hereby certify that the subject of the foregoing motion has been discussed with counsel for the defendant and that we have not been able to reach agreement.

/s/ Jack B. Blumenfeld Jack B. Blumenfeld (#1014)

Case 1:04-cv-01258-SLR

Document 316

Filed 04/10/2006

Page 4 of 4

CERTIFICATE OF SERVICE I, Jack B. Blumenfeld, hereby certify that on April 10, 2006 I electronically filed TriZetto's Motion to Strike McKesson's Second Pretrial Order Submission with the Clerk of the Court using CM/ECF, which will send notification of such filing(s) to the following: Thomas J. Allingham, II Skadden, Arps, Slate, Meagher & Flom LLP I also certify that copies were caused to be served on April 10, 2006 upon the following in the manner indicated:

BY HAND Thomas J. Allingham, II Skadden, Arps, Slate, Meagher & Flom LLP One Rodney Square P.O. Box 636 Wilmington, DE 19899 BY EMAIL Jeffrey G. Randall Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue Suite 1100 Palo Alto, CA 94301

/s/ Jack B. Blumenfeld Morris, Nichols, Arsht & Tunnell LLP 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899 (302) 658-9200 [email protected]